Boehner: House will take up defense of federal marriage act

By Thomas Fitzgerald, INQUIRER POLITICS WRITER

Posted: March 04, 2011

Speaker John A. Boehner announced Friday that the House would fight to uphold the Defense of Marriage Act in court, a little more than a week after President Obama's Justice Department said it would no longer defend the constitutionality of the law, which bans federal recognition of same-sex marriages.

The move marks another detour into contentious cultural issues for the House Republican leadership as it tries to whittle down the federal deficit, and with polls showing Americans most concerned about the economy.

But Boehner (R., Ohio) said in a statement that the president had shirked the executive branch's constitutional obligation to defend all the laws Congress has enacted.

"It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy," he said. "The constitutionality of this law should be determined by the courts - not by the president unilaterally."

Under the 1996 law, passed by overwhelming bipartisan majorities and signed by President Bill Clinton, states are not legally required to recognize same-sex marriages performed by another state, and the federal government cannot recognize them either.

Boehner said he would convene the Bipartisan Legal Advisory Group, which has the authority to direct House lawyers to take action. Republicans have a 3-2 majority on the panel, which includes the top leaders of both parties.

The White House declined to comment on Boehner's move.

Democrats are not likely to favor defense of DOMA. House Minority Leader Nancy Pelosi (D., Calif.) had praised Obama's decision to abandon it as a "victory for civil rights," and she called Boehner's move a costly burden. "This is nothing more than a distraction," she said in a statement.

Yet the cause is important to an important part of the Republican coalition. Former Sen. Rick Santorum (R., Pa.), who is exploring a run for president, was one of the loudest voices criticizing GOP leaders for their muted initial response to Obama's decision. Santorum was the first high-profile figure in the party to publicly suggest, in a Feb. 25 interview with USA Today, that the House take up defense of the law itself.

There are precedents for an administration's refusing to carry out a law.

In 1926, the Supreme Court held that presidents have the exclusive right to dismiss executive branch officials, ruling in a case in which President Woodrow Wilson had fired a postmaster six years earlier despite a law that said they could be removed only with the Senate's consent. Calvin Coolidge's administration did not defend the law, and the Supreme Court appointed a senator to argue its merits.

And in the 1980s, the Reagan administration refused to defend a "congressional veto" law that allowed Congress to void Justice Department deportation decisons. The Supreme Court struck down the law.

"The situation has come up more frequently in cases involving encroachment on executive authority," said Tobias Wolff, a constitutional law professor at the University of Pennsylvania who has been an informal adviser to Obama.

At other times, he said, conflicts have arisen between the legislative branches over policy matters, as in the DOMA case. In 1990, acting Solicitor General John G. Roberts Jr. - now chief justice - refused to defend a Federal Communications Commission affirmative-action program in the awarding of broadcast licenses. Roberts argued it was unconstitutional because it discriminated based on race. The Supreme Court upheld the program.

"It is a serious matter for an administration to decide it will not defend a statute, but it's not as 'unprecedented' as all the handwringing would suggest," Wolff said.

The Obama administration said it would continue enforcing DOMA till courts decide its fate. The federal government has used the law to deny legally married gay couples some benefits available to heterosexual ones - including health, Social Security, and tax benefits.

Same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia. Some states, including New Jersey, allow civil unions.

Last year, a federal judge ruled DOMA unconstitutional in the face of challenges by same-sex couples and the state of Massachusetts. Two federal lawsuits in New York are also challenging it.

Contact politics writer Thomas Fitzgerald at 215-854-2718 or tfitzgerald@phillynews.com. Read his blog, "The Big Tent," at philly.com/BigTent. This article includes information from Inquirer wire services.